Late last year, a circuit judge placed a temporary injunction on the law expanding West Virginia’s charter school system.
Today, the state Supreme Court unanimously granted a stay, lifting that injunction. That means that although the broad legal issues surrounding charter schools will still be explored in court, the expansion of charter schools under current law may continue in the mean time.
Because Justice Evan Jenkins resigned earlier this month, Judge Alan Moats sat in for the Supreme Court.
The state Attorney General’s Office had pushed for the injunction to be lifted. Attorney General Patrick Morrisey today praised the Supreme Court’s position.
“The Supreme Court of Appeals was right to stay the Kanawha County Circuit Court’s preliminary injunction of the charter school bill while it considers the merits of the appeal,” Morrisey stated.
“The stay will give the charter schools that have already been approved the ability to prepare for the upcoming school year while the case is being briefed and argued. The stay also prevents West Virginians from being deprived of the option to send their children to charter schools while this litigation moves forward.”
Morrisey noted that the next step will be to argue the case more broadly before the Supreme Court. He said his office will aim for reversal of the circuit court’s order.
Kanawha Circuit Judge Jennifer Bailey in late December granted a temporary injunction on West Virginia’s newest method for approving charter schools, saying a constitutional challenge stands a good chance of succeeding in the long term.
The legal battle is not about whether West Virginia can have charter schools, but instead whether they may be authorized through a newly-established Professional Charter Schools Board. Board members are appointed by the governor and then go through confirmation by the state Senate. In this route, there is no vote by the public.
The court challenge is based on a portion of the state Constitution that says “no independent free school district, or organization shall hereafter be created, except with the consent of the school district or districts out of which the same is to be created, expressed by a majority of the voters voting on the question.”
When the Legislature first passed a bill allowing charter schools a few years ago, authorization went only through county boards — or the state school board in a few instances. The first applicant was rejected by the Monongalia and Preston county boards.
Last year, the Legislature made changes to include a new pathway to approval, adding a West Virginia Professional Charter School Board as an authorizer. Later last year, that board approved charters for new, freestanding schools in Morgantown, Nitro and Jefferson County. A week later, the board approved two charter schools that would operate online.
Charter schools would receive financial support from the state’s public education system and would be given greater operational latitude in exchange for the possibility of losing their right to operate if they fail. Because they receive public funding, they are considered public schools.
Judge Bailey agreed in December that approvals by the Professional Charter Schools Board have the characteristics of an independent school district.
“This scheme and issue deprives the petitioners of their constitutionally-protected right to vote on charter schools authorized by the Professional Charter Schools Board,” Bailey said then.
Fred Albert, president of American Federation of Teachers-West Virginia, expressed disappointment in today’s Supreme Court ruling.
“The stay issued today by the WV Supreme Court of Appeals will lift the injunction and allow charter schools to open in West Virginia,” Albert stated.
“While this is disappointing, this isn’t the end of the road. The case will proceed and the merits will be heard. Moving forward, I feel confident in the constitutional and legal arguments that will be presented in court to protect a free and equal public education for all West Virginia children.“
The Cardinal Institute for West Virginia Policy, which pushes for greater latitude in school system offerings, praised the Supreme Court’s order. Several members of the West Virginia Professional Charter Schools Board are associated with the Cardinal Institute.
“We applaud the Supreme Court’s decision to stay the injunction,” stated Garrett Ballengee, executive director of the Cardinal Institute.
“The stay will allow those charter schools to move forward with their planning and will also provide families interested in charter schools some certainty as they decide which education environment will best fit their child’s needs. We remain confident that West Virginia will join the other 40+ states that allow for charter schools.”